~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT)

Fair Dealing, Book Piracy and Anti-Photocopying Debate in Kenya

As readers may know, there have been several media reports by book publishers, book authors and their supporters raising an alarm about the rising levels of piracy of printed texts. Japhet Otike, a professor at Moi University, offers a user’s perspective in a recent newspaper article titled: “Photocopying of a copyrighted book is not quite illegal”. His overall argument, which this blogger concurs with, is that copyright is and should be balanced to take into account the rights and interests of owners and users of copyright works respectively. In this regard, Otike argues that the term ‘piracy’ should be reserved only for those involved in mass production of copyrighted materials for commercial purposes. Thus students and teachers who produce a few pages from a book for non-commercial purposes should not be lumped together with hardcore pirates making a fortune from making, distributing and selling unauthorised copies of printed works.

A relevant excerpt from Otike’s piece reads as follows:

“A good copyright law is supposed to strike a balance between the economic rights of the copyright owner and the public’s interest in the work. The law should ensure that the public or information user is allowed to exploit the information content in the book. The exploitation can only take place if the public is allowed to reproduce a limited amount of the work.”

This passage encapsulates the rationale behind the system of exceptions and limitations found in Section 26 of the Copyright, referred to generally as the “fair dealing” provisions. Otike, a staunch advocate for exceptions and limitations for educational institutions, libraries, archives and other such information users, has in the past been an outspoken critique of the encroachment on these fair dealing provisions by copyright owners and their affiliated reprographic rights organisations, most notably the Reproduction Rights Society of Kenya also known as KOPIKEN.

It is important to clarify three aspects of Otike’s piece. Firstly, the threshold amount required to sustain a copyright infringement suit is both quantitative as well as qualitative in nature. Secondly, while no person may be arrested and charged for possessing single copies of pirated material, such person may be liable for copyright infringement in a civil suit. Thirdly, the term of copyright conferred by section 23(2) of the Copyright Act for literary works is 50 years after the end of the year in which the author dies, and not 70 years as stated by Otike.

2 thoughts on “Fair Dealing, Book Piracy and Anti-Photocopying Debate in Kenya”

“However, according to section 38(3) of the Act, copyright is only infringed if a person is found in possession of two or more infringed copies of a whole document or book. Perhaps this explains why no person in Kenya has been taken to court for photocopying books in academic institutions or libraries. Nor has any person been arrested and charged for possessing single copies of pirated material.”

Grave oversight in Prof.Otike’s statement above:

1). S.38(3) relates to making two or more copies of a work in the same form, but it does not negate the fact that one infringing copy is still an infringement. The moment any copying goes beyond what may be considered a fair quantity e.g. more than one article in a journal, it arguably falls within the realms of copyright infringement. In academic institutions and libraries, any sort of infringement (one is enough) should be discouraged by the creation of various internal policies.

Further, the existence of s.38(3) is to rebut the presumption of usage of works for private use. As a consequence, it cannot possibly be intended to advocate for haphazard photocopying in “academic institutions and libraries” because, the fair dealing factors still have to be considered when determining whether the single work is in itself an infringement.

2). No person has been taken to court for photocopying books in “academic institutions and libraries” because, the Publishers have not caught them yet. One should not open themselves up to a feeding frenzy.

3). By nauseating observation, a single copy of a pirated material is indeed and shall eternally remain “infringing the infringer”.